JUDGMENT

                                                             10.2.2010

Justice Pritam Pal, President

1.         This appeal by  opposite parties  is directed against the  order dated 16.11.2009 passed by District Consumer Forum-I, U.T.Chandigarh whereby the complaint bearing No.772 of 2009  filed by Sh.G.P.Bansal , respondent /complainant was allowed  in the following terms ;  

“ In view of above discussion, we are of the opinion that the complaint must succeed.  The same is accordingly allowed.  The OPs are directed  as under:-

i)                    To issue No Due Certificate to the complainant;

ii)                  To pay arrears of pension from 1.5.2006 to 8.4.2007 with interest @12% per annum till its actual payment made to the complainant;

iii)                To regularize the pension of the complainant and issue order thereof with effect from 9.4.2007 onwards;

iv)                To pay interest @12% per annum on the balance amount of provident fund of Rs.4,48,158/- from 1.9.2006 till its actual payment made to the complainant;

v)                  To refund Rs.16,668/- of forced deduction from Provident Fund with interest @12% per annum from 1.9.2006 till its actual payment to the complainant;

vi)                To pay compensation of Rs.50,000/- for causing mental agony and physical harassment to the complainant;

vii)              To pay litigation cost of Rs.5000/-;

The aforesaid payments shall be made within 30 days from the date of receipt of copy of this order”.

2.         The parties hereinafter shall be referred to as per their ranking before the District Consumer Forum.

3..       The facts culminating to the commencement of this appeal may be recapitulated  thus ;

            The complainant  retired  at the age of 60 years on superannuation on  31.8.2005 as XEN-II from the construction office of Punjab University, Chandigarh after rendering thirty-six years service.   He was sanctioned retiral benefits vide No.9436/Estt. dated 28.7.2005 and was paid leave encashment and gratuity on  the eve of his retirement.  He was also paid furlough for a period of six months. The complainant had opted irrevocable Pension Scheme within the prescribed date on 3.3.2006 and was allotted priority No.17.  The whole amount of Rs.13,46,912/- of his provident fund remained  deposited with the University in his provident fund Account No.3079 and it included an amount of Rs.10,59,511/- as university share  which was to be deducted and transferred to the University Pension Corpus Fund automatically on receipt of pension application forms or immediately after completion of the processing of the pension case of the complainant as per provisions of the Punjab University Employees (Pension)1991. It was alleged that the pension scheme of the retired university employees  in general was made effective from May,2006 and complainant was also entitled to regular monthly pension from May,2006 but it was not paid.   According to the complainant he came to know that his pension case and the payment of P.F dues were kept in abeyance because of outstanding advances against him regarding which he was never informed and without providing any opportunity he was held guilty by the University by withholding the payment of the provident fund amount and the monthly pension in contravention of regulation 2.4.

It was further alleged that the complainant  met with an accident on 21.4.2006 and was advised bed rest for 20-24 weeks.  As he was in dire need of money he addressed representations dated 16.5.2006, 12.7.2006 and 7.8.2006 to the Vice Chancellor/OP-1 but to no avail. According to the complainant, he   had been wrongly held responsible solely for pendency of temporary advances amounting to 4,98,44,974/- sanctioned against his name during October,2002 to August,2005 whereas he had initiated his efforts towards settlement of advances by   following the established practice and procedures and strictly completed the same by the time of his retirement. However, after retirement the complainant was neither questioned any query, nor any audit objection was ever addressed to him. OP No.1 thereafter allowed transferring of PF account to P.U. Pension Corpus Fund for releasing of provisional pension for one year from April,2007 and his first pension was paid from 9.4.2007.   It was intimated to the complainant vide letter No.234/EE !! dated 17.1.2008 that all the outstanding advances against him were adjusted on 30.5.2007 and the balance of his provident  fund amount of Rs.4,48,158/-, after transferring of university share to the pension corpus fund was paid to the complainant in the last week of August,2008 which otherwise due to be paid to him on 1.9.2006.   It was alleged that the OPs illegally deducted Rs.16,668/- on account of penalty for misplacement of a departmental file. Hence, alleging deficiency in service on the part of OPs, complainant filed complaint before the District Forum seeking payment of arrears of pension, payment of interest on the provident fund amount, issuance of order for regularization of provisional pension , refund of deducted amount of penalty  and issuance of ‘No Due certificate’ etc. 

4.         On the other hand, the case of OPs before the District Forum was that the complainant was an employee of the Punjab university and as such his complaint   against OPs was not maintainable before the District Consumer Forum as  they did not render any service and further the Employees Provident Fund and Miscellaneous Provisions Act, 1952 was not applicable to them. According to OPs, the complainant retired on 31.8.2005 and at that time the pension scheme was not implemented. As per University Rule 6 at page 117 of the Punjab University Calender Vol.III, 2007, the   amount of Rs.10,59,511/- was not transferred to the Pension Corpus Fund Account as there were advances of more than Rs.5 crores standing unadjusted in the name of complainant. However, in view of the demand made by the complainant on 12.7.2006 for the release of his pension and balance provident fund as he met with an accident on 21.4.2006, he was paid Rs.one lac in Jan,2007, Rs.one lac in March,2007 and Rs.50,000/- again in March,2007 from the Provident fund but the pension of complainant could not be released due to non-adjustment of advances due to him.   It was pleaded that as soon as the advances due to the complainant were adjusted, the payment of provident fund was released by transferring the University share to the Pension Corpus Fund and the delay whatever happened in release of pension and provident fund of the complainant was due to his own fault as he could not get adjusted the advances well in time.  It was pleaded that no cause of action ever arose to the complainant to file the complaint against OPs and there was no deficiency in service on their part. A prayer was made for dismissal of the complaint.

 5.          The learned District Consumer Forum after  going through the evidence and material  brought on record    and hearing the   learned counsel for the parties allowed the complaint as indicated in the  opening part of this judgment. This is how feeling aggrieved , opposite parties have    come up in this appeal.

6.         We have heard  learned counsel for the parties  and also gone through the file   carefully.  The main argument of the learned counsel for appellants/OPs centered around the maintainability of complaint of the complainant before the Fora under the Consumer Protection Act.  He argued that the complainant was working as Executive Engineer with the Punjab University, Chandigarh  and he being its  employee  cannot invoke the jurisdiction of the Consumer Fora  against his employer and provisions of Consumer Protection Act,1986  ( for short hereinafter to be referred as “the Act” ) can only be invoked where the services are hired for consideration and there is any deficiency in service so rendered. The University had not rendered any service towards the complainant, so as to entitle him to invoke the jurisdiction of the District Consumer Forum. On the contrary, complainant was bound by the terms and conditions of his appointment and also regulations/rules enshrined in the Punjab University Calendars for payment of retrial benefits.  The learned counsel  further argued that there is distinction between a “contract of service” and a “contract for service ”  whereas in the instant there was “contract of service” which implies relationship of master and servant  and it involves an obligation to obey orders in the work to be performed and as to its mode and manner of performance  and as such a contract of service is excluded   from the ambit of definition of “service” in the Act. On the other hand, “contract for service “ which implies a contract whereby one party undertakes to render service professional or technical service  is included in the Act. In support of his  argument, he  placed reliance upon the following authorities ;

            (i) Kishori Lal Vs Chairman, ESI

               2007(4) SCC 579 (Supreme court)

          (ii) RPFC Vs Shiv Kumar Joshi

               2000(1)SCC 98 (SC)

          (iii) State of Haryana Vs Lila Ram

                2008(3) CPC 699(NC)

7.         In Kishori Lal’s case  the Hon’ble Apex court  by applying  its earlier three-judge Bench decision in Indian Medical Assn Vs V.P.Shantha (1995) 6 SCC 651 held as under ;

“The term “service” defined in Section 2(1) (o) unambiguously indicates in the definition that the definition is not restrictive and includes within its ambit such services as well which are specified therein. The definition of “service” in Section 2(1) (o)  can be split into three parts: the main part, the inclusionary part and the exclusionary part. The main part is explanatory in nature and defines service to mean service of any description which is made available to potential users. The inclusionary part expressly includes the provision of facilities in connection with banking, financing, insurance, transport, processing supply of electrical or other energy, board or lodging or both, housing  construction, entertainment, amusement or the purveying of news or other information, whereas the exclusionary part in Section 2(1) (O) excludes from the main part services rendered (i) free of charge ; or (ii) under a contract of personal service.

            It further held that ;

            “The expression “contract of personal service” in the exclusionary part of Section (1)(o) must be construed as exclusing the services rendered by an employee to his employer under the contract of personal service  from the ambit of expression “service”. There is a distinction between a “contract of service” and a “contract for service”. A “contract for service” implies a contract whereby one party undertakes to render service e.g. professional or technical service,  to or for another  in the performance of which he is not subject to detailed direction and control and exercises professional or technical skill and uses his own knowledge and discretion, whereas a “contract of service” implies relationship of  master and servant and involves an obligation to obey orders in the work to be performed and as to its mode and manner of performance.  A contract of service is excluded for consideration from the ambit of definition of “service” in the CP Act, whereas a contract for service is included.”

            In the case of Regional Provident Fund Commissioner vs Shiv Kumar Joshi the Hon’ble Supreme court observed that an employee-member of Employees’ Provident Scheme is a consumer and duties performed by Regional Provident Fund Commissioner under the Scheme is service and in case of delay in release of provident fund action for deficiency in service against RPF Commissioner  is maintainable.

            In the case of State of Haryana Vs Lila Ram the Hon’ble National Consumer Commission observed that a contributor to the Employees Provident Fund would fall within the definition of consumer  but it  is in the context of a member of EPF scheme and not in the context of government servant. In the matter of claiming retrial benefits from his employer, a government servant does not fall under the definition of consumer under Section 2(1)(d)(ii) of the CP Act.

8.         On the other hand, the learned counsel for complainant         argued that the OPs were not justified in withholding the retrial benefits  and the complaint of the complainant before the fora  was maintainable  as   the Govt. of India had extended the application of the provision of E.P.F and Misc.Provisions, Act 1952  to the private  affiliated  colleges and the universities which was circulated  by D.P.I colleges (Pb) Chandigarh vide  its office memo dated 3.7.1989 to all regional colleges and the universities including the Punjab University, Chandigarh. He further argued that the plea taken by the university in this case is wrong, incorrect and misleading as the issue of maintainability in question has already been considered by this Commission in a similar case   bearing  appeal case No.116 of 2006  titled H.R.Gupta Vs Registrar Punjab University, Chandigarh etc. where this Commission presided by my learned predecessor by placing reliance upon the authority of Hon’ble Supreme court in Regional Provident Fund Commissioner Vs  Shiv Kumar Joshi AIR 2000 Supreme court 331 the complaint of complainant was held maintainable under the Consumer Protection Act.   However,  H.R.Gupta’s case cited by the learned counsel is of no help to the complainant because the same bench of State Commission, U.T.Chandigarh in another similar appeal bearing No.658/2007 decided on 29.11.2007 by following the judgments of Hon’ble Apex court in State of Orissa Vs Divisional Manager, LIC and another (1996) 8 Supreme court cases 655 and  Indian Medical Association Vs V.P.Shantha (supra) observed that though Employees Provident Fund Organization is covered under the Consumer Protection Act,1986 in view of the authority of Hon’ble Apex court  in RPFC Vs Shiv Kumar Joshi(supra) but where there is  relationship of master and servant in that case the government servant is bound by the service conditions under a contract of personal service which is excluded from the definition of “Service” under the C.P.Act and the expression “personal service” is legal connotation which has been construed in the context of the right to seek enforcement of such a contract under the Specific Relief Act,1953.

9.         In view of our forgoing discussion and the law laid down  by the Hon’ble Apex court in Kishori Lal’s case (supra) and by Hon’ble National Consumer Commission in State of Haryana Vs Lila Ram’s case (Supra), we have no hesitation to hold that there was relationship of employee and employer between the parties and in the given facts and circumstances of this case appellants- Punjab University cannot be termed as service provider to the complainant and service provided by it was under the “contract of personal service” arising out of contract of employment  and as such  it was excluded from the purview of expression of service provider under Section 2(1)(o) of the Consumer Protection Act. Thus, we are of the considered opinion that the complainant is not a “consumer” and the grievance put forward in the complaint does not constitute a “consumer dispute” as defined in the Act, and as such  the District Consumer Forum appears to have failed to appreciate all these facts in its right perspective while   assuming jurisdiction in this matter , which does not fall within the ambit of Consumer Protection Act.

10.             In the result, the  appeal is accepted and the impugned order dated 16.11.2009 passed by the District Consumer Forum is set aside and  consequently complaint is dismissed, leaving the parties to bear their own costs. However, the complainant would be at liberty to seek his remedy, if any available to him,  before the appropriate  court  in accordance with law.    

             Certified copies of this order be communicated to the parties, free of charge. The file be consigned to records.